SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
LUTHER DEROUCHE
REASONS FOR SENTENCE
BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST
on August 24, 2016,
at NEWMARKET, Ontario
APPEARANCES:
D. Wilson Counsel for the Federal Crown
D. Hodson Counsel for Luther Derouche
CITATION: R. v. DEROUCHE, 2016 ONSC 6728
WEDNESDAY, AUGUST 24, 2016
REASONS FOR SENTENCE
Fuerst J.: (Orally)
Mr. Derouche pleaded guilty to multiple offences, all arising from his possession of a loaded Smith and Wesson 38 calibre handgun. The police found it under a pillow in the bedroom of his apartment. It was loaded with five rounds of ammunition. An additional six rounds were found in his bedroom.
There are a number of significant aggravating features in this case including:
Mr. Derouche was bound by a s. 109 prohibition order at the time.
He has a previous criminal record that includes two previous firearms offences.
He was in possession of ammunition for the firearm.
He had the gun loaded, and readily at hand, in his residence in an apartment building.
In mitigation, he pleaded guilty, which is a sign of remorse and acceptance of responsibility for his actions. He has expressed to me a wish to turn his life around, and he has the ability to do so given that he was legitimately employed at the time of his arrest.
Denunciation and deterrence, both general and specific, are the paramount objectives of sentencing in this case. I accept the joint submission of counsel that the sentence should be one of five years in jail. Against that sentence, I give Mr. Derouche credit for his pre-trial custody of 643 actual days, credited at 1.5 to 1 as approximately 965 days or 32 months.
Mr. Derouche, would you stand, please. I sentence you on Count 54 to five years in jail less 32 months of pre-trial custody, leaving a sentence to be served of 28 months. The sentence on Count 55 is 28 months in jail, concurrent. On Count 57 it is 28 months in jail, concurrent. On Count 58 it is 28 months in jail, concurrent.
There is a s. 109 lifetime weapons prohibition order on Counts 55 and 57, and on Counts 54, 55 and 57 there is a DNA order.
THE COURT: You can be seated. Now I just want to make sure, Mr. Wilson and Mr. Hodson, that, having framed it that way, I haven’t violated any of the mandatory minimum sentences because I treated Count 54 as the anchor count, so to speak.
MR. WILSON: Right.
THE COURT: And that’s the count that carries the five years because I can’t credit the pre-trial custody more than once.
MR. WILSON: Right. Based on – based on the – if I could just see the criminal record just briefly for one moment.
THE COURT: Sure. Do you want to – if you want the Criminal Code to – I just want to double check that because in the time available to me I haven’t gone back and checked everything as against the mandatory minimum period.
MR. WILSON: So, Your Honour, based on – based on Mr. Derouche’s previous convictions I don’t – I believe that he is subject to Nur. So I don’t believe that he’s facing a mandatory minimum.
THE COURT: All right. You’re both content about that. I just don’t want him to run into a situation where he’s incarcerated and someone comes along and says, “Guess what?”.
MR. WILSON: Yeah. No, my understanding is based on the counts that were registered previously...
THE COURT: Yes.
MR. WILSON: ...he’s – he would fall into Nur and so there’s no mandatory minimum.
MR. HODSON: That’s correct.
THE COURT: All right. Good. Thank you. So just give me a moment. And the forfeiture order will be made and that pertains to the gun and the ammunition?
MR. WILSON: Yes, Your Honour. And I can provide Your Honour something to sign on the September 13th date.
THE COURT: Sure. All other counts are withdrawn as against....
MR. WILSON: As against Mr. Derouche, yes.
THE COURT: Yes.
MR. WILSON: The only last housekeeping issue, Your Honour, is the victim fine surcharge.
THE COURT: Yes.
MR. WILSON: I think it’s mandatory.
THE COURT: What are you seeking?
MR. WILSON: I think it’s – it’s $200 per count, I believe, is the – is the set amount. If the....
THE COURT: Do you know, Madam Registrar?
MADAM REGISTRAR: I believe it’s $200 for indictable offences.
THE COURT: Per count?
MADAM REGISTRAR: Per count.
THE COURT: So you want $800, Mr. Wilson?
MR. WILSON: I think that’s the set amount, Your Honour. I realize he’s in custody.
THE COURT: Yes.
MR. WILSON: I’m – if Your Honour can think of some other way of dealing with it I don’t have any objection, but.
THE COURT: Mr. Hodson, it is mandatory.
MR. HODSON: I know it’s mandatory. I – I’ve always liked the idea of the bench having discretion but then there is that Court of Appeal decision, I think, if I’m not mistaken, $800 but I’d ask for 36 months to pay. That will give him a full year or more...
THE COURT: Yes.
HR. HODSON: ...following his release. I don’t think we can get around it.
THE COURT: All right. So 36 months to pay. All right. So I’ve made the following endorsement. Mr. Derouche pleads guilty to Counts 54, 55, 57 and 58. He is found guilty on each and convictions are recorded. He is sentenced on Count 54 to five years in jail less credit for pre-trial custody credited at 1.5 to 1 as 32 months, leaving a sentence to be served of 28 months. On Count 55, to 28 months in jail, concurrent. On Count 57, to 28 months in jail, concurrent, and on Count 58, 28 months in jail, concurrent. There is a s. 109 order for life on Counts 55 and 57, and a DNA order on Counts 54, 55 and 57. Forfeiture of the gun and the ammunition is ordered. All other counts are withdrawn as against Mr. Derouche. There is a victim surcharge of $800, in total, with 36 months to pay.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracey Beatty, certify* that this document is a true and accurate transcript of the recording of R. v. Luther Derouche in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on August 24, 2016 taken from Recording No. 4911_403_20160824
_084520_10_FUERSTM.dcr which has been certified by D. Letts in
Form 1.
Tracey Beatty, ACT ID #7742785329
October 27, 2016
Transcript Ordered: October 13, 2016
Transcript Completed: October 27, 2016
Ordering Party Notified: October 27, 2016
(*This certification does not apply to these Reasons for Sentence which were judicially edited)